Judge: Dryden can block gas drilling in community

Ruling focuses on land-use regulations; appeal expected

Feb. 21, 2012

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Dryden -- A judge has ruled in favor of the Town of Dryden, stating that it has the right to keep hydraulic fracturing and natural gas drilling out of the municipality.

Tompkins County Supreme Court Judge Phillip Rumsey ruled Tuesday afternoon that the town's zoning amendment is not preempted by state law. The town was sued in September by Denver-based Anschutz Exploration Corporation after passing an amendment to its zoning ordinance in August that clarified that Dryden's zoning prohibits extractive industries.

"Basically, the judge upheld the power of a town under a properly crafted zoning law to restrict the exploration and extraction of natural gas and petroleum," said Mahlon Perkins, Dryden town attorney. "So, it is a victory."

Anschutz claimed the state's Oil, Gas and Solution Mining Law supersedes all local ordinances related to natural gas drilling with only two exceptions, control of local roads and property taxes, according to court documents. But Rumsey, according to the documents, pointed to a similar clause in the Mined Land Reclamation Law.

Rumsey stated: "The primary language of the two supersedure clauses is nearly identical. The Mined Land Reclamation Law provides that 'for the purposes stated herein, this title shall supersede all other state and local laws relating to the extractive mining industry,' while the Oil, Gas and Solution Mining Law provides that 'the provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries."

Because both clauses only preempt local regulations that relate to the applicable industries, they do not block local regulations of land use, he states in the documents. Neither clause, Rumsey states, contains a clear intent to preempt local control over land use and zoning.

That was the crux of the town's argument all along, Perkins said. But, he said, it is important to remember this case is not about fracking.

"This case is about land-use authority," Perkins said. "It comes down to whether a municipality that has land-use authority -- such as a village, city or town -- can determine where heavy industrial uses are allowed or if they are allowed, and it is not about regulating the industry."

The case is widely expected to be appealed. Anschutz attorney Thomas West said he couldn't say for sure if an appeal was imminent, and said his client would make a decision on an appeal within 30 days.

"It's a legal decision that should be wide open in the appellate courts, and we still remain confident in our positions," West said. "We certainly believe that if this case goes up to the Appellate Division, that the appellate courts will, we think, find some of the legal arguments we've put forth to be persuasive."

Anschutz's complaint states that it has more than $5 million invested in thousands of acres of leased land in Dryden.

Assemblywoman Barbara Lifton, who sent in an amicus brief in October, said she was excited with the ruling, but not entirely surprised.

"I cannot say I am shocked because I think the arguments for home rule are very compelling," Lifton said. "I am thrilled the judge gave us a fair hearing and upheld our state's fair tradition of home rule. It was a very logical decision and one that I strongly agree with and one that I think many of my constituents will be very happy to hear."